By Borrower. If the Lender has become a Defaulting Lender due to a failure to fund its Loans hereunder, Borrower may at its option replace Defaulting Lender under Section 3.11(b) hereof.
By Borrower. Borrower hereby releases, waives and forever relinquishes all claims, demands, obligations, liabilities and causes of action of whatever kind or nature, whether known or unknown, which it has, may have, or might assert now or in the future against Lender and/or its participants, officers, directors, employees, agents, attorneys, accountants, consultants, successors and assigns, directly or indirectly, arising out of, based upon, or in any manner connected with (i) any transaction, event, circumstance, action, failure to act or occurrence of any sort or type, whether known or unknown, prior to the execution of this Agreement with respect to the Obligations, the Financing Documents and/or the administration thereof or the obligations created thereby; (ii) any discussions, commitments, negotiations, conversations or communications with respect to the refinancing, restructuring or collection of any Obligations prior to the execution of this Agreement; or (iii) any thing or matter related to any of the foregoing. The inclusion of this paragraph in this Agreement, and the execution of this Agreement by Lender, does not constitute an acknowledgment or admission by any Lender of liability for any matter, or a precedent upon which liability may be asserted.
By Borrower. The Borrower shall pay on demand all costs and expenses (including legal expenses on a full indemnity basis) reasonably incurred by the Agent and/or any of the Banks in protecting or enforcing any rights against it under this Agreement.
By Borrower. The Borrower agrees and undertakes that prior to the Discharge Date, it shall not, without the prior consent in writing of the Agent and the Banks:-
(1) make any loans or advances, whether directly or indirectly, to any of the Shareholders or provide any guarantee, indemnity or security for or in connection with any indebtedness or liabilities of any of the Shareholders or otherwise enter into any transactions with any of the Shareholders other than (a) any transaction on arm's length commercial terms and for valuable consideration or (b) any Excluded Transaction;
(2) secure all or any part of the Subordinated Indebtedness;
(3) redeem, purchase or otherwise acquire any of the Subordinated Indebtedness;
(4) repay or prepay any, or pay any interest, fees or commissions (but without prejudice to accrual thereof) on, or by reference to, any of the Subordinated Indebtedness otherwise than in accordance with the terms of this Agreement; or
(5) take or omit to take any action whereby the subordination of the Subordinated Indebtedness or any part thereof to the Senior Indebtedness may be terminated, impaired or adversely affected.
By Borrower s execution and delivery of this Amendment, Borrower hereby renews and remakes in favor of the Bank, as of the date hereof, all of Borrower's representations, warranties and covenants made in the Loan Documents, with the same effect as if they were made on and as of the date of this Amendment, other than any such representation or warranty which specifically relates to a specified prior date.
By Borrower. Borrower hereby acknowledges that it is unconditionally liable to Lender for the full payment of each of the obligations set forth at Schedule A hereto and incorporated herein by reference, plus all charges that may arise under the various documents executed or delivered by Borrower evidencing or relating to such obligations including, without limitation, the Loan Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment and the Fifth Amendment (collectively, the "Financing Documents"), plus all attorneys' fees and costs of collection incurred in connection with such obligations by Lender (hereinafter all such obligations are referred to as the "Obligations"), and that, as of the date hereof, Borrower has no defenses, counterclaims or set-offs with respect to the full and immediate payment of any or all Obligations.
By Borrower. During the Escrow Period (as that term is defined below), Borrower: (i) shall keep the collateral for the Loan free of all liens, claims, title exceptions and encumbrances, other than (i) Permitted Encumbrances, and (ii) the liens and interests arising under the Loan Documents; (ii) shall execute and deliver or otherwise provide any documents or instruments relating to this Agreement or the Loan as Lender may reasonably request, including, without limitation, any assignments or other documents of conveyance, releases or discharges necessary to put title or possession of the Property in the Designee in the condition contemplated by this Agreement and the Closing Documents and any affidavits or certifications requested by Lender updating and confirming (i) any of the representations, warranties or statements made, or (ii) the performance of any of the obligations or agreements undertaken, by Borrower; (iii) shall permit Lender (and Lender's employees, agents, attorneys and accountants), at such times as Lender may request, to review and inspect the Property and all books and records regarding the Property and its operation; (iv) shall manage and operate, and shall cause Key Principal to manage and operate, the Property in the ordinary course of business; (v) shall use, and shall cause Key Principal to use, its best efforts to assist in the transfer to the Designee of, or obtaining by the Designee of, each of the licenses, permits and certificates necessary for operation of the Property, which assistance shall include, without limitation, providing any information or documents necessary to obtain the proper consents and approvals from applicable governmental authorities; (vi) shall promptly deliver, and shall cause Key Principal to promptly deliver, to Lender copies of any notices or communications received by Borrower or Key Principal regarding any claims, liens, encumbrances, assessments or levies claimed against any of the Property; -4- (( (vii) shall use its best efforts to arrange to have all utility and public service meters read as of the Delivery Date (hereinafter defined); (viii) (viii)on the Delivery Date, shall arrange for the removal of its name as the owner of the Property on the records of the appropriate utility and public service companies, and shall assist and cooperate with the Designee in arranging for the commencement of service to the Designee on such date; and (ix) shall provide such certifications or assurances as may be reasonably requ...
By Borrower. On each date on which a payment is to be made by the Borrower, it shall make that payment to the Agent in the currency specified in Clause 16.3 (Currency of Payments) in such funds and by such time on the due date as may then be generally accepted for the settlement in the Place of Payment of international payments in that currency. All such payments shall be made to such account with such bank in the Place of Payment as the Agent may specify.
By Borrower. If (A) any Lender requests compensation under Section 3.04, (B) a Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or (C) any Lender is a Defaulting Lender, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(i) The Borrowers shall have paid to the Administrative Agent the assignment fee specified in Section 11.06(b);
(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and its Applicable Percentage of each L/C Disbursement made by the L/C Issuer, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the applicable Borrower (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; and
(iv) such assignment does not conflict with applicable Laws. Upon the consummation of such sale and assignment, the applicable amendment, modification, forbearance and/or waiver giving rise to the option to acquire such Non-Consenting Lender’s interests hereunder shall become effective upon giving effect to such assignment (and any related assignments required to be effected in connection therewith in accordance with this Section 11.13).
By Borrower. If a Lender has become a Defaulting Lender, Borrower may at its option replace Defaulting Lender under Section 2.10(b).
